Divisions in Muslim society and the Indian
public lawBy Prof. Tahir Mahmood

The
followers of Islam in India – nearly 150-million by official admission
-- are today divided into various religious and ideological communities
and sub-communities, groups and sub-groups, and sects and sub-sects. They
are not just Muslims -- but Sunni, Shia, Hanafi, Shafei, Ahl-e-Hadith,
Ithna Ashari, Isma’ili, Deobandi, Barelvi, and so on and so forth. These
historical-cum-ideological classifications of a distant past are,
unfortunately, dividing the Muslims of our times – keeping them away
from the true Muslim ideals of unity and brotherhood. The traditional
Islamic concept of Ummat-e-Wahidah (One Community) is far from their
reach.

The Sunni-Shia division of Islam is merely historical. It owes its
existence to the difference of opinion among the Prophet’s followers on
his demise in 732 AD regarding his successor as the Caliph – the
majority favouring an election open to all and a minority seeking
nomination of the Prophet’s nearest kin – his first paternal cousin
and son-in-law, Hazrat Ali. The majority had prevailed and the Prophet’s
close confidant and father-in-law, Hazrat Abu Bakr, was elected as the
first Caliph. Two years later he was succeeded by another close Companion
of the Prophet, Hazrat Umar ibn Al-Khattab [whose daughter, too, was
married to the Prophet]. The second Caliph ruled for twelve years; and
then the mantle passed on to Hazrat Usman ibn Affan [who had married one
after another two daughters of the Prophet]. Hazrat Ali eventually became
the 4th Caliph after Hazrat Usman, in 667 AD. He was recognized by the
minority group as the Prophet’s Wasi (regent) and therefore the Imam –
head of the community – of the time; in the opinion of this group he
should have been also the first Caliph. The said majority and minority
groups among the Muslims of those days are the Sunnis and the Shias,
respectively, of today. They have, obviously, no justifiable reason to
quarrel with each other over some disputed facts of distant history.

The Shias themselves are not a single unified group, again for historical
reasons. After Hazrat Ali, the Shias of early Islamic history had
recognized more Imams, successively, among Hazrat Ali’s descendants on a
hereditary basis. Twice there was a split – different groups recognizing
one of the two brothers as the Imam. This is how eventually the Shias had
got internally divided into three groups – Zaidis, Ismai’ilis and
Ithna Asharis [also called the Jafaris]. The Jafari Ithna Asharis got
later divided into two ideological schools – the Akhbaris and the Usulis.
The Isma’ili Shias too got divided into two branches – the Nizaris and
the Musta’lis, also known as Eastern and Western Isma`ilis respectively.

The Sunnis too, are not a monolithic group. As the Prophet had sanctioned
use of "personal reason" for the decisions of problems solutions
to which were not found in the Qur’an and Sunnah, with the passage of
time great Muslim jurists had begun developing and systematizing religio-legal
precepts (fiqh). The process was called ijtihad [search for true religio-legal
position on specific matters]. Towards the end of the first century of
Islam were born Imam Abu Hanifa in Kufa and Imam Malik in Madina, who were
later recognized as founders of two different mazahib (schools) or religio-legal
thought, named after them as the Hanafi and the Maliki schools. The next
century had seen development of two other great schools – the Shafei
school of Imam Idris al-Shafei in Egypt and the Hanbali school of Imam
Ahmad ibn Hanbal in Baghdad. In the course of time a predominant section
of Sunni Muslims had accepted the final and binding authority of one or
another of the four schools of law. Only a small minority among the Sunnis
had not agreed to this principle called taqlid. The Ithna Ashari Shias too
developed their separate school of fiqh now known as the Fiqh-e-Jafari. So
did the other two Shia groups – the Isma`ilis and the Zaidis. This is
how seven schools of Islamic law (mazahib-e-fiqh) had come into existence
and still prevail on the globe. All these schools of law, obviously, aimed
at offering a variety of legal rules to enrich the Muslim legal heritage,
not any causes for quarrel to weaken the Muslim society.

In India the majority of Muslims are Sunni while the Shias constitute a
sizable minority. The majority among the Sunnis are Hanafi, while many
groups of them (especially in South and West) follow the Shafei school.
Among the Shias of India the Ithna-Asharis are in the majority while the
Khojas and Bohras of Western and Central India belong to the two internal
divisions of the Isma`ili group of Muslims. There are in this country no
Malikis or Hanbalis among the Sunnis and no Zaidis among the Shias. There
is, however, a strong group of Sunni Muslims called the Ahle-e-Hadith who
do not consider themselves bound by any particular school of law and rely
directly on the Prophet’s Sunnah.

There are, among the Sunnis of India, also virtually two versions of Islam
– the puritan version which represents original Islam as found in the
texts of Qur’an and authentic Sunnah, and the version which allows and
accommodates things like veneration of graves and holding of various kinds
of festivities on religious occasions and at places of religious
importance – all of which are viewed by the adherents to the former
version as bid`at [unauthorized innovation]. The latter version is,
doubtless, deeply influenced by local religious usages and practices. In
India the puritans are sometimes called Wahhabi – [after Imam
Abd-ul-Wahhab of the Hanbali school of Islamic religio-legal thought,
though they are not Hanbali], or ‘Deobandi’ – [after the famous
seminary of Deoband in UP, Dar-ul-Uloom, which follows the puritan
ideology. The other group is called Bid`ati [practitioners of
innovations], or Barelvi – [after their religious leader, Imam Ahmad
Raza Khan of Bareilly city in UP].

The Indian public law recognizes not only the Sunnis and Shias, but also
every other group of Muslims in the country to be the followers of Islam,
equally. Under the Constitution of India all these divisions are equally
entitled to the protection of their respective religious beliefs and
practices. All that the Constitutional and legal system of India has to
offer to any religious community, sub-community or group, or is legally
available to an individual, in terms of religious rights and freedoms, is
available equally to each of these classes of Muslims and their members.
The Indian law makes no discrimination between them. Like Hanafi law, the
Shafei law and Shia law are also regarded in India as part and parcel of
the Indian legal system.

The Indian public law also does not discriminate between the
Deobandi-Wahhabi or the Barelvi-Bid’ati versions of Islam. Under the
Constitution of India each group has a right to adhere to its own peculiar
beliefs and practices in matters of religion. Under this country’s law
relating to religion and religious freedom the Barelvi-Bid’ati Muslims
also profess and practise Islam only. Equally applicable to each of the
various sects and ideological groups of the Muslims of India is the
judicial dictum adopted in 1954 by the Supreme Court of India that :

"If this is in fact the belief of the community, a secular judge is
bound to accept that belief; it is not for him to sit in judgment on the
authenticity of that belief"

The Indian law cannot compel any one who claims to be a Muslim to
subscribe to any particular belief of Islam – puritan or innovative. It
was observed by the Madras High Court in 1952 that : "If a person is
born into a particular religion, the mere fact that he is of an unorthodox
type or has no belief personally in the tenets of that religion would not
take him out of the category of persons professing that religion".

Reflecting the policy of Indian public law, this principle equally applies
to Muslims. Much less can the State in India force a Muslim to practise
his religion – or to practise it according to its authentic tenets. Any
compulsion by the State in this regard is neither possible nor legally
tenable.

In India, various groups of Muslims do indulge in charging one another
with kufr (heresy). Sunnis would some times regard the Shias as kafir, and
vice-versa; and the charge is sometimes freely traded between the
Deobandis and Barelvis, or the Ahl-e-Hadith and the Muqallids. The
practice, called takfir, has no recognition in the law of this country
whatsoever. In a Calcutta case it has been held recently in 1991:

"No one has a right to condemn a person with a Muslim name as a
non-Muslim until and unless he renounces Islam as a religion by his or her
own pronouncement"

Under the old Indian Freedom of Religion Act 1850 no forfeiture of rights
of any kind can be inflicted on any individual due to his exclusion from
the communion of any religious group or sub-group.

Now, look at the scenario today. The holy texts of Islam might have given
the Muslims the concept of Ummat-e-Wahidah. The law of India may be
viewing with equality the entire Muslim citizenry of India as followers of
Islam. But do we Muslims care? Do we recognize one another to be Muslims
equally, one another’s beliefs as Muslim beliefs and one another’s law
as Muslim law?

It is not too late in the day. Let us adopt in our actual day-to-day
practice the policy of Indian public law to recognize all Muslims as
Muslims only -- and thereby also answer the call of our religion to become
an Ummat-e-Wahidah in the true sense of the expression. Therein will lie
our strength, the ideal solution to all our present problems. q